MOHD AMIN Vs. MOHD UMAR

JUDGEMENT

(1.) S. R. Lakha, Member. This second appal has been filed against the judgment and decree dated 31-1-2002 passed by learned Additional Commissioner, Moradabad in Appeal No. 505 of 2000-2001 confirming the judgment and decree dated 27-3-2001 passed by A. S. D. O. Sadar, Rampur in Suit No. 80 of 99-2000 under Section 229-B of the U. P. Z. A. and L. R. Act.

(2.) BRIEFLY stated facts are that Mohd. Amin instituted a suit under Section 229-B of the U. P. Z. A. and L. R. Act for declaration impleading Mohd. Umar, Smt. Fatima, Abdul; Rauf and others defendants. He claimed that the land in question solely belong to him. He alleged that he had purchased the area in the year 1965 and had continued to remain in possession since then. He also put up an alternative plea that even if defendant No. 1 to 3 had any right they lost the same on account of adverse possession of the plaintiff for over 12 years. He prayed that he be declared to be the sole bhumidahr of the land in question Defendant No. 1 and 2 contested the suit. They pleaded that in the land in queet on the share of defendant No. 1 was 1/3rd and that of defendant Nos. 2 and 3 was jointly 1/3rd. They decided the suit on this basis. They also alleged that during the consolidation operations the names of defendants have been entered alongwith the name of the defendant and that the present suit is barred by Section 49 of the U. P. C. H. Act. They also pleaded that the present suit is barred by Setion 34 (5) of U. P. Land Revenue Act. They specifically averred that law of 'sharah Mohammadi' is not applicable to the present case. They trial Court found that in Khatauni 1400-1405 Fasli and in C. H. Form 45 defendant Nos. 2 and 3 are recorded as co-tenants alongwith the plaintiff. It also found that the plaintiff failed to establish that he contiuned to be in possession exclusively for over 30-35 years. The trial Court held that the present suit was barred by Section 49 of U. P. C. H. Act and dismissed the same. On appeal the learned Additional Commisisoner confirmed the order of the trial Court and dismissed the appeal. Hence the present second appeal.

(3.) THE learned Counsel for the respondent, in reply, has submitted that the two Courts belw after considering the material on record found that the present suit was barred by Section 49 of U. P. C. H. Act. He stated that consolidation oprations took place more than 30 years back and the plaintiff did not care to object to the entires of the name of the defendants during the consolidation operations and all the C. H. Forms were prepared showing the defendants as co-tenants and hence learned Courts below have rightly held the present suit to be barred by Section 49 C. H. Act. He further stated that it would no longer open to the plaintiff to say that he did not know about the entry of the name of the defendants after such a long time. He argued that the Courts below have rightly dismissed the suit of the plaintiff.